Angiulo: Latest Supreme Court Case—More Than Meets The Eye

In most work places, conversations about political speech and birth control are things to be avoided. If you worked at the Supreme Court, however, these weighty subjects are regular topics. In fact, Supreme Court Justices go looking to start those kinds of conversations by picking and choosing which cases gets a chance to be brought before the Supreme Court. It is only when certiorari is granted that a case goes before the court and gets its very own place in the history of decisions. Of the cases that do get decided, there tends to be an issue in the court's opinion that is very fact driven. There is, however, almost always another topic lurking just below the surface that very quietly makes a big impact.

Take, for example, the pre-Thanksgiving announcement that this year's term of the highest court of the land will include arguments regarding the Hobby Lobby Stores and other corporations claims of religious exemption to the universal health care mandates. The face value of these cases is whether, or not, corporate entities will be held to the terms of the Affordable Care Act, aka Obamacare, aka Romneycare, requiring them to provide health insurance to their employees that includes birth control coverage.

The religious aspects of this case are well summarized in the Federal Government's request for certiorari on the Hobby Lobby case and center on a 1993 law. The law in question is entitled “ Free exercise of religion protected” and, as summarized in the request brief, essentially states that “the government shall not substantially burden a person's exercise of religion unless that burden is the least restrictive means to further a compelling governmental interest.” The corporations in question seek the protection of the statutory provisions collectively known as the Religious Freedom Restoration Act found in 42 U.S.C. 2000 et seq. and the Government, in this case, seeks to enforce the Affordable Care Act.

Whether, or not, the mandates of the Affordable Care Act in general, or birth control coverage requirements specifically, serve a compelling governmental interest are very personal questions. In fact, there are some people that have spent a considerable amount of time coming to very particular conclusions on these subjects. Take the people who own Hobby Lobby as an example. According to their brief to the Supreme Court, their religious principles have cost them hundred of thousands of dollars in lost rents alone, which points to their commitment to their religion. In this case, if they were required to cover those forms of birth control that prevent the implantation of an embryo, they feel that they would be “facilitating what they believe to be an abortion” and would therefore be “violating their faith”.

The Hobby Lobby cases presents a very interesting issue separate and apart from religion: whether the corporations in question are people entitled to the protection of statutory provisions. Interestingly, this question may have been answered in part by the United States Code itself. Reviewing the definitions section of 1 U.S.C. §1we see that when interpreting statutes, the terms “person” and “whoever” explicitly include corporations and other business entity forms unless the context indicates otherwise.

This concept of corporate personhood may seem to be a little abstract, but it is actually very real. In fact, Corporations are regularly treated as persons in many situations that we are familiar with. As an example, when the United States Attorney General sought accountability for the Mortgage Crises they pursued certain corporations for their alleged role in fraudulent transactions. Entities like JPMorgan were the subject of massive fraud prosecutions that resulted in a multi-million dollar settlement. In those cases, the corporate form itself becomes the defendant rather than the individuals making up the entity.

In addition, the recent case of Citizens United v. Federal Election Commission is an example of Corporate, as well as other organizations, being afforded free speech protections in the context of political speech that may be instructive on the Hobby Lobby cases. The big picture is that, as stated in the Citizens United decision, the First Amendment protections of free speech are applicable to corporations and unions regardless of whether they are “natural persons.” It follows, therefore, that the other part of the First Amendment stating that “Congress shall make no law . . . prohibiting the free exercise thereof” needs to be addressed by the Court one way or the other. This case may just be the context in which to do it.

Empowering the corporate form, just like political donations and birth control, is a topic that lends itself to passionate thoughts and voices weighted with emotion. Consider, for a moment, that the corporate form isn't really some kind of boogie man living in your closet or under your bed trying to get you. It's nothing more than perhaps the most prevalent entity used to do business in the United States and the World. It's fair to say that many people choose to form companies or practice groups in some form or another. By extending the full protections of our Constitutional and Legal framework to for-profit and non-profit groups and organizations we are encouraging people to have faith that the things they dedicate themselves to building will not be unfairly hobbled. Something, like this, that encourages domestic business development should at least be considered because “[a]fter all, the chief business of the American people is business.” Whether or not the business entity that benefits so much from our national policies acts in a socially responsible way, and in so doing gives back, is a separate question.

Leonardo Angiulo is an Attorney with the firm of Glickman, Sugarman, Kneeland & Gribouski in Worcester handling legal matters across the Commonwealth. He can be reached by email at [email protected].

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